Briefly stated the facts are that the plaintiff-respondent filed a suit for declaration against her brothers Muhammad Shafi and Manzoor-ul-Hassan, defendants Nos.1 and 2 petitioners and her mother Mst. Jannat Bibi claiming that mutation of Tamleek No,272, dated 29-1-1992 regarding inheritance of her father Muhammad-ud-Din in respect of land measuring 200 Kanals was fake and result of fraud. The suit was resisted by the defendants including petitioners Nos.1 and 2. From the divergent pleadings of the parties the trial Court framed as many as five issues and vide judgment and decree dated 26-4-1995 decreed the suit of the plaintiff-respondent. The defendants-present petitioners as well as Mst. Jannat Bibi filed appeal against the said judgment and decree.
2. During the pendency of the appeal, on 6-11-1997 when the matter was pending in the Court of Additional District Judge, Rahimyar Khan and initially had been adjourned to 2-12-1997, an application was moved whereby it was prayed that the appeal to the extent of Muhammad Shag and Mst. Jannat Bibi be dismissed on the basis of compromise between the parties. Accordingly the Additional District Judge recorded the statements of Muhammad Shafi and Mst.
Jannat Bibi and dismissed the appeal to their extent.
3. Muhammad Shafi petitioner and Mst. Jannat Bibi moved an application under section 12(2), C.P.C. On 2-4-1999 wherein they alleged that order, dated 6-11-1997 had been obtained by practising fraud as neither Muhammad Shafi appeared in the Appellate Court for Mst. Jannat Bibi (predecessor-ininterest of Manzoor-ul-Hasan/petitioner No,2). The application was resisted by the plaintiffs-respondents. However, vide order, dated 5-10-2000 the said application has been dismissed; hence, the instant civil revision.
4. Preliminary arguments have been heard and record perused.
5. The stand of the learned counsel for the petitioner is that since fraud has been alleged to have been practised upon the present petitioners, so it was incumbent on the Appellate Court to frame issues and then to dispose of the application under section 12(2), C.P.C. He further submitted that the matter having been adjourned to 2-12-1997, question of moving subsequent application through Ch. Abdul Sattar, Advocate, alleged to have been appointed by the present petitioners does not arise. He next submitted that the learned Appellate Court had not obtained the National Identity Cards from Muhammad Shafi and Mst. Jannat Bibi while recording their statements and obtaining their thumb-impressions as well as signature of Muhammad Shafi. He, thus, submitted that all these facts require evidence. As such the issues should have been framed and thereafter the matter should have been disposed of. In support of his contentions he has placed reliance upon Ismail Brothers v. Keval Ram (PLD 1981 SC 545), Mian Muhammad Afzaal Hussain v. Abdul Latif (1997 SCM R 1382), Abdul Razzaq v. Muhammad Islam and 3 others (1999 SCM R 1714) and Muhammad Hussain v. Mst. Razia Bibi and others (1999 M LD 3030).
6. It is evident from the facts stated above that initially the suit was filed by Mst. Safia plaintiff- respondent against her brothers Muhammad Shafi and Manzoor-ulHassan/present petitioners as well as her mother Mst. Jannat Bibi widow of Muhammad-ud-Din. The matter in issue pertains to attestation of mutation of Tamleek No,272, dated 29-1-1992 which has been sanctioned in favour of defendants/petitioners Muhammad Shafi and Manzoor-ul-Hassan as well as Mst. Jannat Bibi. The said suit was resisted by the contesting defendants and initially the suit was decreed in favour of Mst. Safia Bibi vide judgment and decree, dated 26-4-1995. An appeal against the said suit was preferred by the defendants-petitioners and it was during the pendency of that appeal that matter came up for hearing before the learned Additional District Judge, Rahimyar Khan on 6-11-1997. A perusal of the order-sheet reveals that matter had been adjourned from 6-11-1997 to 2-12-1997 but the matter was again taken up by the Court on the basis of averments made by the learned counsel for the defendants/petitioners to the effect that a compromise has been arrived at between the parties. As such the appeal to the extent of Muhammad Shafi petitioner and Mst.
Jannat Bibi (predecessor-in-interest of Manzoor-ul-Hassan petitioner) be treated asdismissed. It is in the wake of this averment of the learned counsel for the defendants-petitioners that the Appellate Court took up the matter again and recorded the statements of Muhammad Shafi as well as Mst. Jannat Bibi and obtained thumb-impressions of both Muhammad Shafi and Mst.
Jannat Bibi and so also signatures of Muhammad Shafi. Their statements were also duly verified by their learned counsel Ch. Abdul Sattar, Advocate. It was in this background that the appeal filed by Muhammad Shafi and Mst. Jannat Bibi was dismissed and the matter was kept alive to the extent of Manzoor-ul-Hassan petitioner No,2 who is another- brother of Mst. Safia Bibi plaintiff- respondent. It is after one year and five months that the instant application under section 12(2), C.P.C. Has been moved by Muhammad Shafi as well as Mst. Jannat Bibi who was alive at that time and now stands succeeded by Manzoor-ul-Hassan petitioner No,2. It was averred in the application under section 12(2), C.P.C. That they neither appeared in the Appellate Court nor had authorised Ch. Abdul Sattar, Advocate to make statement on their behalf. This application was also resisted by the plaintiff-respondent. After hearing the learned counsel for the parties, the Appellate Court dismissed the application vide order, dated 5-10-2000.
7. The stand of the learned counsel for the defendants-petitioners is that it was incumbent upon the Appellate Court to frame issues and then to allow the parties to substantiate their contentions and it was thereafter that the matter should have been disposed of. In support of his contention he has also relied upon the authorities referred above.
8. A perusal of the record reveals that no doubt the matter was taken up on 6-11-1997 and was adjourned to 2-12-1997 when the matter was again taken up on the basis of statement of the learned counsel for the defendants/petitioners that they had effected compromise with the plaintiff-respondent and the matter be disposed of accordingly. The learned Appellate Court recorded the statement of Muhammad Shafi as well as Mst.Jannat Bibi and obtained the signatures and thumb-impressions of Muhammad Shafi and also thumb-impressions of Mst.
Jannat Bibi. The learned Appellate Court also obtained signatures of the learned counsel who represented them at the relevant time. The matter did not end here. Alongwith the statements of Muhammad Shafi and Mst.Jannat an application regarding compromise was also brought on record and was exhibited as A-1. It was on the basis of statements of Muhammad Shafi coupled with their compromise application Exh. A-1 that the matter was disposed vide order, dated 6-11- 1997. Had the trial Court not recorded the statements of Muhammad Shafi and Mst. Jannat Bibi and there had been no application for compromise which is available on record in the instant case, there could be some force in the contention of the learned counsel for the defendants-petitioners.
In the insant case the Appellate Court not only recorded the statements of Muhammad Shafi and Mst. Jannat Bibi but also obtained their thumb-impression and got their statements verified from their counsel and also brought on record application for compromise regarding factum of compromise which was the subject-matter of issue at the relevant time.
9. It may also be noted that the appeal was dismissed to the extent of Muhammad Shafi and Mst.
Jannat Bibi on 6-11-1997 and the matter was kept alive to the extent of Manzoor-ul-Hassan. This Manzoor-ul-Hassan is not a stranger but is the real brother of Muhammad Shafi and real son of Mst. Jannat Bibi and also real brother of Mst. Safia Bibi. It hardly stands to reasons that an appeal to the extent of mother of the plaintiff-respondent and one brother of the plaintiff-respondent is being disposed of on the basis of compromise and this fact is not in the notice of the petitioners. All these facts clearly show that initially the compromise was brought about between the plaintiff- respondent and Muhammad Shafi and Mst.Jannat Bibi defendants on the basis of which order, dated 6-11-1997 was obtained and now for some reasons, best known to the defendants- petitioners, they have again agitated the said matter. In none of the authorities cited at the Bar the facts were identical to the facts enumerated above. As such, with due respect all these authorities are not applicable to the facts in hand.
10. In the light of facts stated above, there is no force in the instant civil revision and the same is hereby dismissed in limine.